The Relation between the Public Prosecutor and the Minister of Justice
Chapter II
The Relation between the Public Prosecutor and the Minister of Justice
The prosecution service is an authority separate and independent from the court. It is part of the administrative organisation of the Federal Ministry of Justice. In Austria there are about 200 public prosecutors, not counting those working in administrative matters in the Ministry of Justice in Vienna and also not counting the about 200 district attorneys. To be appointed as public prosecutor one has to fulfil the requirements for being appointed as a judge, and additionally, one must have been working as a judge for at least one year.
Specific regulations concerning organisation, functions etc are to be found in the Public Prosecution Act of 1986 (Staatsanwaltschaftsgesetz) as well as in its implementing Ordinance of 1986. These regulations sometimes refer to other legislation. The role of the prosecution service within criminal proceedings is laid down in the CCP as well as the above mentioned Ordinance.
Whereas judges are independent, public prosecutors, as members of a hierarchically structured administrative body, are subject to instructions of their superiors up to the Minister of Justice. At every district court the public prosecution is represented by so called district attorneys (Bezirksanwälte) who have not studied law, but had to do a special training. At every regional court there is a public prosecutor‘s office. The senior public prosecutor‘s office at the courts of appeal and the Attorney General’s office at the Supreme Court are on the same hierarchical level only bound by instructions of the Minister of Justice.
In detail, the Public Prosecution Act distinguishes the following ranks of public prosecutors: the public prosecutor’s office is headed by the chief public prosecutor (Leitender Staatsanwalt) who is represented by the first public prosecutor (Erster Staatsanwalt); the other members of the office are called public prosecutors (Staatsanwalt). At the senior public prosecutor’s office the head is called chief senior prosecutor (Leitender Oberstaatsanwalt), his deputy is the first senior prosecutor (Erster Oberstaatsanwalt). The head of the attorney general’s office is the Generalprokurator, followed by his first deputy called first Attorney General (Erster Generalanwalt). The other members of the senior public prosecutor’s office as well as the Attorney General’s office are each representing the head of the office (Oberstaatsanwalt, Generalanwalt). The tasks of the head of each hierarchical level are representing his office, supervising the other prosecutors, giving instructions if necessary, and taking over single actions from subordinate prosecutors. The senior public prosecution offices have to regularly review the public prosecution offices. The same is true for the Minister of Justice vis-à-vis the senior prosecution service and the prosecution service. Grievances have to be remedied by the minister immediately.
The public prosecutor’s office at the regional court in Graz (Styria) e.g. consists of eighteen prosecutors, the senior public prosecutor’s office at the court of appeals in Graz consists of three senior prosecutors; and at the Attorney General’s office there are about sixteen Generalanwälte.
Each public prosecution office is divided into sections (Referate) that are united to groups headed by a public prosecutor (Gruppenleiter) whose most important task is to supervise the decisions of the prosecutors being members of the group. Public prosecutors are under supervision at least for their first ten years working in the prosecution service. After this period of time, the head of the office may delegate tasks into their exclusive responsibility if qualifications and experiences allow that. The decision to abstain from prosecuting a case falling within the jurisdiction of a jury court or a laymen’s court always has to be supervised (four eyes principle).
Specialised national prosecutors do not exist. Specialisation may occur within one public prosecutor’s office in fields like drug offences, economic crime etc.
The public prosecution service as such is not institutionalised within the Austrian Constitution; only the principle of accusation is laid down in constitutional law. Therefore, the integration of the public prosecution service into the Constitution has been requested repeatedly over the last years.
The public prosecution service has to look after State interests, especially in the field of criminal justice, but also in some selected areas of civil proceedings like denial of legitimacy, petition for nullity of marriage and declaration of death.
A very small number of offences cannot be prosecuted by the public prosecutor but only by the victim himself. In these cases, the victim is acting as a private prosecutor having the right to view the files and to pass on to the court anything that supports his charge. Basically, although with some exceptions, he has the same rights as a public prosecutor. He is supervised by the court. At his request the public prosecutor may take over the prosecution. If private prosecution does not result in a conviction, the private prosecutor has to bear the costs of the trial. Only 1,5 % of all charges are private prosecution cases.
Offences laid down in administrative criminal law are not prosecuted by the public prosecution service but dealt with by specific administrative authorities in administrative penalty proceedings according to administrative laws.
The highest authority in the prosecution service is the Minister of Justice. The Ordinance (Verordnung) about the implementation of the Public Prosecution Act has been issued by the Minister of Justice in 1986. The minister’s competence is to formulate general prosecution policy by issuing ministerial orders (Erlässe). Such ministerial orders often have the function of guidelines, e.g. how to deal with diversion decisions, how to handle the prosecution register, or about details concerning the report system.
The Minister of Justice (as well as the other hierarchical authorities) may issue general instructions on the exercise of tasks and powers of the prosecution service as well as specific (positive or negative) instructions concerning investigation and prosecution in individual cases. Public prosecutors are required to follow instructions unless they are in conflict with criminal law provisions. Public prosecutors have to refuse to follow instructions violating criminal law; otherwise they may be brought to trial for the commission of abuse of official duties (Sect. 302 CC). Illegal instructions, however, have to be followed. There is no restriction on ministerial power to issue instructions. Instructions to dismiss an individual case, so called negative instructions, are also possible. The Minister of Justice himself, of course, is bound by the principle of legality. Priorities on what crime to prosecute and what crime not may not be set. Instructions in individual cases from superior authorities have to be issued in writing and have to be motivated. Specific instructions are issued only very rarely. With a view to the CCPRA the discussion on the ministerial right to issue instructions in individual cases has been quite intense, but did not lead to any changes so far.
The right to issue instructions is exercised on the basis of the obligation to report on specific individual cases. Public prosecutors have to report to senior prosecutors on criminal cases of special public interest, or if there is an important legal question to solve. The report has to include actions that have been taken already, as well as planned actions. The senior prosecutors then have to report to the Ministry of Justice.
Ministerial orders concretise and extend these obligations to report on cases, orders issued by the senior public prosecution office furthermore concretise and extend report obligations. The Minister of Justice and senior prosecutors may ask for reports in individual cases as well. In addition, monthly and yearly reports have to be submitted as well as reports on special investigation techniques.
The other side of the coin of the powers to supervise, regulate and intervene in prosecutorial matters vested with the Minister of Justice is his political accountability for the policy of the prosecution service. The Minister of Justice, indeed, may be questioned by Parliament on prosecution policy in general as well as on individual prosecution decisions.
Legal possibilities to dismiss cases
Due to the principle of legality, prosecutors are not allowed to dismiss cases for expediency reasons. The public prosecutor has to determine if the act in question is a punishable act; if this is true, he has to prosecute. In a modern sense, of course, this does not necessarily mean he has to file charges as the prosecutor might decide on a diversion measure. Nevertheless the law provides for one exception from the legality principle (Sect. 34 subs. 2 CCP; procedural efficiency).
If there is no sufficient evidence for continuing prosecution the prosecutor (prior to a preliminary investigation) drops the case by putting back the report (Zurücklegen der Anzeige, Sect. 90 CCP). After a preliminary investigation has been initiated he may decide to withdraw his request for prosecution (Sect. 109 subs. 1 CCP) or declare that he sees no reason for further judicial proceedings. This, of course, does not constitute an exception to the principle of legality.
As soon as the public prosecutor gets to know about legal impediments for prosecution e.g. time limits, he will dismiss prosecution. If the public prosecutor drops the case, he has to inform the victim as well as the suspect about this fact. Only if the victim asks for it, the public prosecutor has to motivate her decision not to prosecute, which enables the victim to decide on whether to start a subsidiary prosecution or not. Otherwise, the public prosecutor just has to motivate his decision to drop the case for internal use.
The prosecutor also has to dismiss a case, if there exists a legal reason for exemption from punishment like Sect. 42 CC, (mangelnde Strafwürdigkeit der Tat), laid down as a rule in substantive criminal law. This peculiarity of Austrian criminal law is no exception to the principle of legality, but leads to comparable consequences.
Section 42 CC provides that a criminal act is not considered to be punishable by law, if:
- the act is an offence requiring public prosecution;
- the act is only a misdemeanour (which means that the offence is to be sanctioned by not more than three years of confinement);
- the offender‘s guilt is to be assessed minor;
- the offence has resulted in no, or in no more than slight, consequences or, if the consequences are more than slight, the offender has achieved (almost full) compensation or at least made serious efforts resulting to almost full compensation by a third party; and
- punishment is not necessary to prevent the offender from offending in the future or to deter the public.
Whereas diversion is dealing with cases which are considered to be punishable acts, Sect. 42 CC decriminalises minor offences where certain requirements are met rather than to formally divert them from the criminal justice process.
As mentioned above, the law provides for an exception of the principle of legality based on reasons of procedural efficiency (Sect. 34 subs. 2 CCP, first introduced in 1918):
- the public prosecutor may (unconditionally or temporarily) refrain from prosecuting single offences in case the defendant is accused of having committed more than one criminal act, if this is likely to have no appreciable influence on the sentence that will be imposed;
- the public prosecutor also may (unconditionally or temporarily) abstain from prosecution of single offences, if the defendant is to be extradited to a foreign country because of the commission of other criminal acts and the sentence likely to be imposed in Austria is insignificant compared to the sentence he has to face abroad; in this case the public prosecutor may wait for the sentence before deciding whether to prosecute or not;
- the public prosecutor may decide not to prosecute a criminal act committed abroad, if the defendant has already been sentenced abroad and the punishment likely to be inflicted by an Austrian court would not be more severe.
In general it is accepted that the prosecutor should refrain from prosecuting if the successful investigation of a minor offence would cause unreasonable costs.
Subsidiary prosecution by the victim
When it comes to criminal proceedings, the role of the victim is mainly that of a witness. All criminal justice authorities have the duty to inform the injured persons of their rights in criminal proceedings as far as this seems to be necessary under the given circumstances (Sect. 47a CCP). The victim of crime only has active participatory rights in the criminal proceedings if he has a civil claim against the offender as a result of the offence. To exert these rights the injured person just has to declare that he wants to join the proceedings as a private participant to get compensation from the offender, the so-called adhesion proceedings. The active participatory rights of the private participant include: passing evidence to the court, viewing the files, putting questions to the defendant, witnesses and experts, making personal statements as well as a closing statement presenting the civil claim for damages, and pleading with regard to the question of guilt. If the evidence is sufficient to support the civil claim, the court must not refer it to the civil courts according to the CCP but has to decide on it; otherwise the private participant may appeal. In addition, the private participant may apply for advance payment from the state if he has obtained a title for execution.
If the public prosecutor in a case decides to refrain from prosecution, the private participant may take over the prosecution as subsidiary prosecutor, having the same position as the public prosecutor but bearing the financial risk if the defendant is not convicted.
Complaints to a higher authority
Against actions taken by the public prosecutor everybody may bring in a complaint to the higher authority (Aufsichtsbeschwerde, Sect. 37 PSA). Complaints that are not obviously unfounded have to be brought to the prosecutor’s attention, together with the request to grant relief, to report on it within a certain time limit, or to explain why this might not be possible.
Diversion
In January 2000, an amending statute of the CCP provided the prosecutor, and later in the course of the Parliamentary proceedings also the investigating judge and the court, with an alternative instrument to respond to crime, namely a comprehensive package of new diversion measures to be applied under general criminal law. Until then, measures of diversion could only be applied under juvenile criminal law (since 1988) and under some limited areas of general criminal law, including drug and military offences.
Diversion as understood in Austria, means the early termination of criminal proceedings by the public prosecutor or the court, in minor or, at least, less severe cases. This pre-emptive termination avoids formal proceedings, or at least formal conviction, and the presumption of innocence is preserved. It is the final disposition of the case, but it is not registered in the criminal records. It may occur with or without imposing informal measures or sanctions on a suspect; in fact they are offered to the suspect as diversion is built on voluntary involvement on his side. That is not to say, however, that diversion implies decriminalisation. The offence committed is still a criminal act, but the response is less formal, and often more socially constructive. Diversion is possible from the moment the public prosecutor has official knowledge of the offence, until the end of the main trial. Laws do not countenance diversion by the police. The main agent in the field of diversion is the public prosecutor, but it also may be applied or offered by the court.
Legal prerequisites for application of diversion are:
- the crime in question is not a petty offence and also not one requiring traditional criminal penalties in the interest of individual and general prevention;
- the offence has to fall within the jurisdiction of the district court or of the single judge at the regional court (Landesgericht); this basically means that the offence is to be sanctioned by not more than five years of confinement (there are some exceptions). Offences to be tried before a Schöffengericht (two judges and two lay assessors) or a Geschworenengericht (three judges and eight jurors) are excluded;
- the offence falls under the remit of the public prosecutor (Offizialdelikte);
- crimes resulting in fatalities are excluded from diversion;
- the guilt of the suspect should not be severe;
- the public prosecutor or the court deems the circumstances of the case clear and settled with no outstanding evidence; and
- the suspect should voluntarily accept the diversion offer, even in the least intensive offers of probation (Freiwilligkeitserfordernis).
In actual practice, the prosecutor is imposing sanctions that resemble traditional criminal punishments (especially monetary payments or community service) which are mandatory, in effect, in light of the threat of continued proceedings. Although the public prosecutor does not have the authority to enforce sanctions, the continuation of the proceedings amounts to an implicit enforcement mechanism.
The CCP provides four different measures of diversion which may not be combined with each other:
- payment of an amount of money (diversion fine);
- community service;
- determination of a probationary period (1-2 years) possibly combined with supervision of the probationer and/or the fulfilment of so-called obligations (Pflichten); and
- victim offender mediation (Aussergerichtlicher Tatausgleich which actually means out of court conflict resolution).
According to the CCP, the consent of the victim is an essential precondition for Victim Offender Mediation (VOM) with adult offenders (this is not true for VOM with juvenile offenders). This declaration of consent, however, is not necessary if it is refused on grounds that are not to be taken into consideration within criminal proceedings, like retribution, or revenge. VOM has been an alternative type of reaction since 1992 when a pilot project for adult offenders was started.
Actual conflict resolution is carried out by specially trained social workers (mediators, Konfliktregler) employed by an Association called Neustart. The mediator informs the public prosecutor about the progress made as well as about the outcome of the conflict resolution. The decision whether the VOM has been successful as prerequisite for abstention from prosecution, or not, has again to be made by the prosecutor or the court. Neither the public prosecutor nor the court demands a specific procedure or a specific outcome in advance; the participants, as well as the mediators, are free to decide upon their way of solving the conflict. Apart from the monetary payment, VOM is the only diversion measure where the public prosecutor may additionally require the payment of a lump sum up to € 145,-.
To stress the importance of restorative elements within criminal proceedings, the Austrian legislature has decided that each of the other three diversion measures must be combined with a compensation order.
The public prosecutor applies diversion unless or until he brings a formal indictment, after which the authority is transferred to the court with a hearing from the public prosecutor until the end of the main trial. Therefore the prosecutor must later request diversion from the court if he thinks it appropriate after an indictment.
This legislation, of course, leads to a new understanding of the public prosecutor’s role within the criminal procedure; he now plays an adjudicative role. Intervening diversion is not only a decision about whether to indict or not but also a decision about the final disposition of the case, giving the public prosecutor powers ordinarily reserved for the court. The legislature specifies that diversion is to be an offer, rather than a sanction, so as to avoid infringing upon the traditional authorities granted to the prosecutor and the court (richterliches Sanktionsmonopol).
Termination of the proceedings by the prosecutor precludes a decision by the court, however, so that the judge is displaced by the prosecutor. This means, in addition, that a suspect cannot make requests to a judge against the will of the prosecutor. Refusing a diversion offer will thus lead the proceedings to continue on to the court, where the final authority resides. It is true for all diversion measures that the formal criminal proceedings are to be continued if, either the suspect refuses to accept the offer, or he does not fulfil the diversion obligations in time, or if he requests the continuation of proceedings.
If a court terminates the proceedings by invoking diversion measures, and the prosecutor wishes to appeal the decision, he can file a complaint in appellate court within 14 days. If a court rejects a request to terminate proceedings, then either the prosecutor or the suspect can likewise file a complaint. They may also appeal court decisions concerning a continuation of the proceedings. Moreover, failing to apply diversion in a case which satisfies all the prerequisites for diversion, is a ground of nullity.
Final discharges based on successful diversion have the same status as judicial decisions or judgements, and preclude prosecution in respect of the same facts (ne bis in idem).
Although the law states that the interests of the victims are to be promoted as much as possible, the victims have no means to ensure that their interests are served in cases ending in diversion where they lack the right of appeal. If a prosecutor terminates the proceedings with diversion, the victim has no right to act as a subsidiary prosecutor. (Subsidiarankläger).
In comparison to general criminal law, in juvenile law there are fewer restrictions concerning application of diversion. The public prosecutor has to decide for diversion if a juvenile offence is to be sanctioned only by a fine or a prison sentence not exceeding five years (=ten years in general criminal law) and all other prerequisites stated in the CCP are satisfied. Considerations of general prevention again may influence the decision only in exceptional cases.
Under juvenile law, the court has to apply diversion to all offences without restriction with regard to a maximum punishment. However, according to Supreme Court ruling the court is not allowed to apply diversion in cases of offences involving fatalities or in cases of severe guilt. Further differences with general criminal law pertain to the juvenile suspect’s capacity, e.g. his ability to pay compensation, etc, or to the fact that VOM with juvenile suspects does not depend on the victim’s consent.
Unlike general criminal law, the Juvenile Courts Act recognises the possibility of non intervening diversion. According to Sect. 6 Juvenile Courts Act (Jugend-gerichtsgesetz), the prosecutor must terminate any proceedings in the case of juvenile offences that are to be sanctioned only by a fine or a prison sentence not exceeding five years (the equivalent of ten years in general criminal law), that is if further measures, especially intervening diversion, are not necessary for purposes of individual prevention. A court must likewise terminate such proceedings, if it has commenced a preliminary investigation and must do so until the end of the main trial.
Only in exceptional cases should considerations of general prevention influence the decision. Offences involving fatalities are precluded from diversion. In order to warn or counsel certain juvenile offenders, a prosecutor may request that they appear before a guardianship court for instruction.
Specific provisions on diversion
- The public prosecutor may refrain from prosecuting minor offences committed by military personnel by orders of a superior under specific circumstances. Punishment, however, still might be imposed on the basis of internal military rules (Sect. 3 subs. 2 Military Penal Code, Militärstrafgesetz);
- If a prisoner has committed an offence to be prosecuted before a district court, the public prosecutor may refrain from prosecution, if it is only a minor criminal offence and if the penalty for infringement of regulations (Ordnungsstrafe) seems to be sufficient (Sect. 118 subs. 3 Prison Act, Strafvollzugsgesetz);
- According to Sect. 35 subs. 1 of the Narcotic Drugs Act (Suchtmittelgesetz), the public prosecutor has to refrain for a period of two years from prosecuting someone against whom a complaint has been brought for having obtained or for possessing a small amount of drugs for personal use if drug abuse treatment (advice, detoxication treatment, cure from addiction, therapy) is necessary, possible (opinion of the district authorities), and is desired by the defendant. A probation officer may be appointed. The public prosecutor may for two years refrain from prosecution under the above mentioned preconditions, if the amount of drugs in question is small, or if the defendant has obtained or has been possessing a great amount of drugs but without the intention to put it into circulation or if the offence was committed by an addict in connection with the acquisition of drugs (except trial by jury or magistrate’s court), the defendant’s guilt cannot be regarded as severe and a conviction is not necessary to prevent the defendant from offending in the future. Prosecution may be resumed during the two-year period if the defendant request it, if he is accused of having committed further drug offences, or if the defendant violates any condition imposed on him during drug rehabilitation and there are reasons of individual prevention for continuing criminal proceedings. Also, the court has these possibilities to suspend proceedings temporarily, but may impose directions of probation in addition.
The Relation between the Public Prosecutor and the Minister of Justice
The prosecution service is an authority separate and independent from the court. It is part of the administrative organisation of the Federal Ministry of Justice. In Austria there are about 200 public prosecutors, not counting those working in administrative matters in the Ministry of Justice in Vienna and also not counting the about 200 district attorneys. To be appointed as public prosecutor one has to fulfil the requirements for being appointed as a judge, and additionally, one must have been working as a judge for at least one year.
Specific regulations concerning organisation, functions etc are to be found in the Public Prosecution Act of 1986 (Staatsanwaltschaftsgesetz) as well as in its implementing Ordinance of 1986. These regulations sometimes refer to other legislation. The role of the prosecution service within criminal proceedings is laid down in the CCP as well as the above mentioned Ordinance.
Whereas judges are independent, public prosecutors, as members of a hierarchically structured administrative body, are subject to instructions of their superiors up to the Minister of Justice. At every district court the public prosecution is represented by so called district attorneys (Bezirksanwälte) who have not studied law, but had to do a special training. At every regional court there is a public prosecutor‘s office. The senior public prosecutor‘s office at the courts of appeal and the Attorney General’s office at the Supreme Court are on the same hierarchical level only bound by instructions of the Minister of Justice.
In detail, the Public Prosecution Act distinguishes the following ranks of public prosecutors: the public prosecutor’s office is headed by the chief public prosecutor (Leitender Staatsanwalt) who is represented by the first public prosecutor (Erster Staatsanwalt); the other members of the office are called public prosecutors (Staatsanwalt). At the senior public prosecutor’s office the head is called chief senior prosecutor (Leitender Oberstaatsanwalt), his deputy is the first senior prosecutor (Erster Oberstaatsanwalt). The head of the attorney general’s office is the Generalprokurator, followed by his first deputy called first Attorney General (Erster Generalanwalt). The other members of the senior public prosecutor’s office as well as the Attorney General’s office are each representing the head of the office (Oberstaatsanwalt, Generalanwalt). The tasks of the head of each hierarchical level are representing his office, supervising the other prosecutors, giving instructions if necessary, and taking over single actions from subordinate prosecutors. The senior public prosecution offices have to regularly review the public prosecution offices. The same is true for the Minister of Justice vis-à-vis the senior prosecution service and the prosecution service. Grievances have to be remedied by the minister immediately.
The public prosecutor’s office at the regional court in Graz (Styria) e.g. consists of eighteen prosecutors, the senior public prosecutor’s office at the court of appeals in Graz consists of three senior prosecutors; and at the Attorney General’s office there are about sixteen Generalanwälte.
Each public prosecution office is divided into sections (Referate) that are united to groups headed by a public prosecutor (Gruppenleiter) whose most important task is to supervise the decisions of the prosecutors being members of the group. Public prosecutors are under supervision at least for their first ten years working in the prosecution service. After this period of time, the head of the office may delegate tasks into their exclusive responsibility if qualifications and experiences allow that. The decision to abstain from prosecuting a case falling within the jurisdiction of a jury court or a laymen’s court always has to be supervised (four eyes principle).
Specialised national prosecutors do not exist. Specialisation may occur within one public prosecutor’s office in fields like drug offences, economic crime etc.
The public prosecution service as such is not institutionalised within the Austrian Constitution; only the principle of accusation is laid down in constitutional law. Therefore, the integration of the public prosecution service into the Constitution has been requested repeatedly over the last years.
The public prosecution service has to look after State interests, especially in the field of criminal justice, but also in some selected areas of civil proceedings like denial of legitimacy, petition for nullity of marriage and declaration of death.
A very small number of offences cannot be prosecuted by the public prosecutor but only by the victim himself. In these cases, the victim is acting as a private prosecutor having the right to view the files and to pass on to the court anything that supports his charge. Basically, although with some exceptions, he has the same rights as a public prosecutor. He is supervised by the court. At his request the public prosecutor may take over the prosecution. If private prosecution does not result in a conviction, the private prosecutor has to bear the costs of the trial. Only 1,5 % of all charges are private prosecution cases.
Offences laid down in administrative criminal law are not prosecuted by the public prosecution service but dealt with by specific administrative authorities in administrative penalty proceedings according to administrative laws.
The highest authority in the prosecution service is the Minister of Justice. The Ordinance (Verordnung) about the implementation of the Public Prosecution Act has been issued by the Minister of Justice in 1986. The minister’s competence is to formulate general prosecution policy by issuing ministerial orders (Erlässe). Such ministerial orders often have the function of guidelines, e.g. how to deal with diversion decisions, how to handle the prosecution register, or about details concerning the report system.
The Minister of Justice (as well as the other hierarchical authorities) may issue general instructions on the exercise of tasks and powers of the prosecution service as well as specific (positive or negative) instructions concerning investigation and prosecution in individual cases. Public prosecutors are required to follow instructions unless they are in conflict with criminal law provisions. Public prosecutors have to refuse to follow instructions violating criminal law; otherwise they may be brought to trial for the commission of abuse of official duties (Sect. 302 CC). Illegal instructions, however, have to be followed. There is no restriction on ministerial power to issue instructions. Instructions to dismiss an individual case, so called negative instructions, are also possible. The Minister of Justice himself, of course, is bound by the principle of legality. Priorities on what crime to prosecute and what crime not may not be set. Instructions in individual cases from superior authorities have to be issued in writing and have to be motivated. Specific instructions are issued only very rarely. With a view to the CCPRA the discussion on the ministerial right to issue instructions in individual cases has been quite intense, but did not lead to any changes so far.
The right to issue instructions is exercised on the basis of the obligation to report on specific individual cases. Public prosecutors have to report to senior prosecutors on criminal cases of special public interest, or if there is an important legal question to solve. The report has to include actions that have been taken already, as well as planned actions. The senior prosecutors then have to report to the Ministry of Justice.
Ministerial orders concretise and extend these obligations to report on cases, orders issued by the senior public prosecution office furthermore concretise and extend report obligations. The Minister of Justice and senior prosecutors may ask for reports in individual cases as well. In addition, monthly and yearly reports have to be submitted as well as reports on special investigation techniques.
The other side of the coin of the powers to supervise, regulate and intervene in prosecutorial matters vested with the Minister of Justice is his political accountability for the policy of the prosecution service. The Minister of Justice, indeed, may be questioned by Parliament on prosecution policy in general as well as on individual prosecution decisions.
Legal possibilities to dismiss cases
Due to the principle of legality, prosecutors are not allowed to dismiss cases for expediency reasons. The public prosecutor has to determine if the act in question is a punishable act; if this is true, he has to prosecute. In a modern sense, of course, this does not necessarily mean he has to file charges as the prosecutor might decide on a diversion measure. Nevertheless the law provides for one exception from the legality principle (Sect. 34 subs. 2 CCP; procedural efficiency).
If there is no sufficient evidence for continuing prosecution the prosecutor (prior to a preliminary investigation) drops the case by putting back the report (Zurücklegen der Anzeige, Sect. 90 CCP). After a preliminary investigation has been initiated he may decide to withdraw his request for prosecution (Sect. 109 subs. 1 CCP) or declare that he sees no reason for further judicial proceedings. This, of course, does not constitute an exception to the principle of legality.
As soon as the public prosecutor gets to know about legal impediments for prosecution e.g. time limits, he will dismiss prosecution. If the public prosecutor drops the case, he has to inform the victim as well as the suspect about this fact. Only if the victim asks for it, the public prosecutor has to motivate her decision not to prosecute, which enables the victim to decide on whether to start a subsidiary prosecution or not. Otherwise, the public prosecutor just has to motivate his decision to drop the case for internal use.
The prosecutor also has to dismiss a case, if there exists a legal reason for exemption from punishment like Sect. 42 CC, (mangelnde Strafwürdigkeit der Tat), laid down as a rule in substantive criminal law. This peculiarity of Austrian criminal law is no exception to the principle of legality, but leads to comparable consequences.
Section 42 CC provides that a criminal act is not considered to be punishable by law, if:
- the act is an offence requiring public prosecution;
- the act is only a misdemeanour (which means that the offence is to be sanctioned by not more than three years of confinement);
- the offender‘s guilt is to be assessed minor;
- the offence has resulted in no, or in no more than slight, consequences or, if the consequences are more than slight, the offender has achieved (almost full) compensation or at least made serious efforts resulting to almost full compensation by a third party; and
- punishment is not necessary to prevent the offender from offending in the future or to deter the public.
Whereas diversion is dealing with cases which are considered to be punishable acts, Sect. 42 CC decriminalises minor offences where certain requirements are met rather than to formally divert them from the criminal justice process.
As mentioned above, the law provides for an exception of the principle of legality based on reasons of procedural efficiency (Sect. 34 subs. 2 CCP, first introduced in 1918):
- the public prosecutor may (unconditionally or temporarily) refrain from prosecuting single offences in case the defendant is accused of having committed more than one criminal act, if this is likely to have no appreciable influence on the sentence that will be imposed;
- the public prosecutor also may (unconditionally or temporarily) abstain from prosecution of single offences, if the defendant is to be extradited to a foreign country because of the commission of other criminal acts and the sentence likely to be imposed in Austria is insignificant compared to the sentence he has to face abroad; in this case the public prosecutor may wait for the sentence before deciding whether to prosecute or not;
- the public prosecutor may decide not to prosecute a criminal act committed abroad, if the defendant has already been sentenced abroad and the punishment likely to be inflicted by an Austrian court would not be more severe.
In general it is accepted that the prosecutor should refrain from prosecuting if the successful investigation of a minor offence would cause unreasonable costs.
Subsidiary prosecution by the victim
When it comes to criminal proceedings, the role of the victim is mainly that of a witness. All criminal justice authorities have the duty to inform the injured persons of their rights in criminal proceedings as far as this seems to be necessary under the given circumstances (Sect. 47a CCP). The victim of crime only has active participatory rights in the criminal proceedings if he has a civil claim against the offender as a result of the offence. To exert these rights the injured person just has to declare that he wants to join the proceedings as a private participant to get compensation from the offender, the so-called adhesion proceedings. The active participatory rights of the private participant include: passing evidence to the court, viewing the files, putting questions to the defendant, witnesses and experts, making personal statements as well as a closing statement presenting the civil claim for damages, and pleading with regard to the question of guilt. If the evidence is sufficient to support the civil claim, the court must not refer it to the civil courts according to the CCP but has to decide on it; otherwise the private participant may appeal. In addition, the private participant may apply for advance payment from the state if he has obtained a title for execution.
If the public prosecutor in a case decides to refrain from prosecution, the private participant may take over the prosecution as subsidiary prosecutor, having the same position as the public prosecutor but bearing the financial risk if the defendant is not convicted.
Complaints to a higher authority
Against actions taken by the public prosecutor everybody may bring in a complaint to the higher authority (Aufsichtsbeschwerde, Sect. 37 PSA). Complaints that are not obviously unfounded have to be brought to the prosecutor’s attention, together with the request to grant relief, to report on it within a certain time limit, or to explain why this might not be possible.
Diversion
In January 2000, an amending statute of the CCP provided the prosecutor, and later in the course of the Parliamentary proceedings also the investigating judge and the court, with an alternative instrument to respond to crime, namely a comprehensive package of new diversion measures to be applied under general criminal law. Until then, measures of diversion could only be applied under juvenile criminal law (since 1988) and under some limited areas of general criminal law, including drug and military offences.
Diversion as understood in Austria, means the early termination of criminal proceedings by the public prosecutor or the court, in minor or, at least, less severe cases. This pre-emptive termination avoids formal proceedings, or at least formal conviction, and the presumption of innocence is preserved. It is the final disposition of the case, but it is not registered in the criminal records. It may occur with or without imposing informal measures or sanctions on a suspect; in fact they are offered to the suspect as diversion is built on voluntary involvement on his side. That is not to say, however, that diversion implies decriminalisation. The offence committed is still a criminal act, but the response is less formal, and often more socially constructive. Diversion is possible from the moment the public prosecutor has official knowledge of the offence, until the end of the main trial. Laws do not countenance diversion by the police. The main agent in the field of diversion is the public prosecutor, but it also may be applied or offered by the court.
Legal prerequisites for application of diversion are:
- the crime in question is not a petty offence and also not one requiring traditional criminal penalties in the interest of individual and general prevention;
- the offence has to fall within the jurisdiction of the district court or of the single judge at the regional court (Landesgericht); this basically means that the offence is to be sanctioned by not more than five years of confinement (there are some exceptions). Offences to be tried before a Schöffengericht (two judges and two lay assessors) or a Geschworenengericht (three judges and eight jurors) are excluded;
- the offence falls under the remit of the public prosecutor (Offizialdelikte);
- crimes resulting in fatalities are excluded from diversion;
- the guilt of the suspect should not be severe;
- the public prosecutor or the court deems the circumstances of the case clear and settled with no outstanding evidence; and
- the suspect should voluntarily accept the diversion offer, even in the least intensive offers of probation (Freiwilligkeitserfordernis).
In actual practice, the prosecutor is imposing sanctions that resemble traditional criminal punishments (especially monetary payments or community service) which are mandatory, in effect, in light of the threat of continued proceedings. Although the public prosecutor does not have the authority to enforce sanctions, the continuation of the proceedings amounts to an implicit enforcement mechanism.
The CCP provides four different measures of diversion which may not be combined with each other:
- payment of an amount of money (diversion fine);
- community service;
- determination of a probationary period (1-2 years) possibly combined with supervision of the probationer and/or the fulfilment of so-called obligations (Pflichten); and
- victim offender mediation (Aussergerichtlicher Tatausgleich which actually means out of court conflict resolution).
According to the CCP, the consent of the victim is an essential precondition for Victim Offender Mediation (VOM) with adult offenders (this is not true for VOM with juvenile offenders). This declaration of consent, however, is not necessary if it is refused on grounds that are not to be taken into consideration within criminal proceedings, like retribution, or revenge. VOM has been an alternative type of reaction since 1992 when a pilot project for adult offenders was started.
Actual conflict resolution is carried out by specially trained social workers (mediators, Konfliktregler) employed by an Association called Neustart. The mediator informs the public prosecutor about the progress made as well as about the outcome of the conflict resolution. The decision whether the VOM has been successful as prerequisite for abstention from prosecution, or not, has again to be made by the prosecutor or the court. Neither the public prosecutor nor the court demands a specific procedure or a specific outcome in advance; the participants, as well as the mediators, are free to decide upon their way of solving the conflict. Apart from the monetary payment, VOM is the only diversion measure where the public prosecutor may additionally require the payment of a lump sum up to € 145,-.
To stress the importance of restorative elements within criminal proceedings, the Austrian legislature has decided that each of the other three diversion measures must be combined with a compensation order.
The public prosecutor applies diversion unless or until he brings a formal indictment, after which the authority is transferred to the court with a hearing from the public prosecutor until the end of the main trial. Therefore the prosecutor must later request diversion from the court if he thinks it appropriate after an indictment.
This legislation, of course, leads to a new understanding of the public prosecutor’s role within the criminal procedure; he now plays an adjudicative role. Intervening diversion is not only a decision about whether to indict or not but also a decision about the final disposition of the case, giving the public prosecutor powers ordinarily reserved for the court. The legislature specifies that diversion is to be an offer, rather than a sanction, so as to avoid infringing upon the traditional authorities granted to the prosecutor and the court (richterliches Sanktionsmonopol).
Termination of the proceedings by the prosecutor precludes a decision by the court, however, so that the judge is displaced by the prosecutor. This means, in addition, that a suspect cannot make requests to a judge against the will of the prosecutor. Refusing a diversion offer will thus lead the proceedings to continue on to the court, where the final authority resides. It is true for all diversion measures that the formal criminal proceedings are to be continued if, either the suspect refuses to accept the offer, or he does not fulfil the diversion obligations in time, or if he requests the continuation of proceedings.
If a court terminates the proceedings by invoking diversion measures, and the prosecutor wishes to appeal the decision, he can file a complaint in appellate court within 14 days. If a court rejects a request to terminate proceedings, then either the prosecutor or the suspect can likewise file a complaint. They may also appeal court decisions concerning a continuation of the proceedings. Moreover, failing to apply diversion in a case which satisfies all the prerequisites for diversion, is a ground of nullity.
Final discharges based on successful diversion have the same status as judicial decisions or judgements, and preclude prosecution in respect of the same facts (ne bis in idem).
Although the law states that the interests of the victims are to be promoted as much as possible, the victims have no means to ensure that their interests are served in cases ending in diversion where they lack the right of appeal. If a prosecutor terminates the proceedings with diversion, the victim has no right to act as a subsidiary prosecutor. (Subsidiarankläger).
In comparison to general criminal law, in juvenile law there are fewer restrictions concerning application of diversion. The public prosecutor has to decide for diversion if a juvenile offence is to be sanctioned only by a fine or a prison sentence not exceeding five years (=ten years in general criminal law) and all other prerequisites stated in the CCP are satisfied. Considerations of general prevention again may influence the decision only in exceptional cases.
Under juvenile law, the court has to apply diversion to all offences without restriction with regard to a maximum punishment. However, according to Supreme Court ruling the court is not allowed to apply diversion in cases of offences involving fatalities or in cases of severe guilt. Further differences with general criminal law pertain to the juvenile suspect’s capacity, e.g. his ability to pay compensation, etc, or to the fact that VOM with juvenile suspects does not depend on the victim’s consent.
Unlike general criminal law, the Juvenile Courts Act recognises the possibility of non intervening diversion. According to Sect. 6 Juvenile Courts Act (Jugend-gerichtsgesetz), the prosecutor must terminate any proceedings in the case of juvenile offences that are to be sanctioned only by a fine or a prison sentence not exceeding five years (the equivalent of ten years in general criminal law), that is if further measures, especially intervening diversion, are not necessary for purposes of individual prevention. A court must likewise terminate such proceedings, if it has commenced a preliminary investigation and must do so until the end of the main trial.
Only in exceptional cases should considerations of general prevention influence the decision. Offences involving fatalities are precluded from diversion. In order to warn or counsel certain juvenile offenders, a prosecutor may request that they appear before a guardianship court for instruction.
Specific provisions on diversion
- The public prosecutor may refrain from prosecuting minor offences committed by military personnel by orders of a superior under specific circumstances. Punishment, however, still might be imposed on the basis of internal military rules (Sect. 3 subs. 2 Military Penal Code, Militärstrafgesetz);
- If a prisoner has committed an offence to be prosecuted before a district court, the public prosecutor may refrain from prosecution, if it is only a minor criminal offence and if the penalty for infringement of regulations (Ordnungsstrafe) seems to be sufficient (Sect. 118 subs. 3 Prison Act, Strafvollzugsgesetz);
- According to Sect. 35 subs. 1 of the Narcotic Drugs Act (Suchtmittelgesetz), the public prosecutor has to refrain for a period of two years from prosecuting someone against whom a complaint has been brought for having obtained or for possessing a small amount of drugs for personal use if drug abuse treatment (advice, detoxication treatment, cure from addiction, therapy) is necessary, possible (opinion of the district authorities), and is desired by the defendant. A probation officer may be appointed. The public prosecutor may for two years refrain from prosecution under the above mentioned preconditions, if the amount of drugs in question is small, or if the defendant has obtained or has been possessing a great amount of drugs but without the intention to put it into circulation or if the offence was committed by an addict in connection with the acquisition of drugs (except trial by jury or magistrate’s court), the defendant’s guilt cannot be regarded as severe and a conviction is not necessary to prevent the defendant from offending in the future. Prosecution may be resumed during the two-year period if the defendant request it, if he is accused of having committed further drug offences, or if the defendant violates any condition imposed on him during drug rehabilitation and there are reasons of individual prevention for continuing criminal proceedings. Also, the court has these possibilities to suspend proceedings temporarily, but may impose directions of probation in addition.
